Human rights are a big deal. You should not need me to tell you that, nor should you need a showcase event like The Gathering 2013 to publicise that. Imagine having to choose your favourite right, as per my recent post reflecting on a session at The Gathering or, to flip the question, having to choose which right you would discard? That is the late Lord Bingham’s question, so excellently framed by David Allen Green in his Jack of Kent blog.
So why am I, or rather why are we, talking about human rights again? I am rather fatigued by the whole ECHR-bashing thing, as it seems is Adam Wagner, but I am delighted he was moved to blog with his characteristic style despite his reservations. In a way I am a little loath to add any more analysis, but I will offer one very small insight from a Scots constitutional law perspective.
The Scotland Act 1998 embeds the ECHR in the devolution settlement. Legislation and ministerial actions must be ECHR compliant. No compliance, no law. It is that simple. Sure, some contorted arguments may be put forward about compliance on a case by case basis, so there are times when it may not seem that simple, but the starting point is clear. It is similar but different in Northern Ireland, all as detailed in an informative Euro Rights Blog post.
As it happens, like Wagner, I suspect the many “what ifs” will mean that nothing will come of the most recent exercise in human rights navel gazing in terms of substantive reforms, but I do think some political mileage might be available whilst the debate is ongoing. I.e. would the Tories be so daft as to rip up the Scots constitution?
To explain, trying to remove the ECHR or somehow carving out the jurisdiction of the European Court of Human Rights from the Scots devolution settlement seems about as feasible as trying to remove all the green from a Macdonald tartan weave. You might be able to do it, but in teasing out the green that which is left would be threadbare: I certainly would not volunteer to wear a kilt made of such material.
I ponder thus. Is there an independence referendum angle? Think of the recent debate about Scotland’s relationship with the EU, which has been writ large with the Eastleigh by-election. Now, the EU and human rights are different (thanks again to Wagner for explaining this), but the same point can be made. An independent Scotland would never interfere with such rights, but the dastardly Tories would, or so the story would go. How would that affect the referendum vote? I will leave that to the pollsters and amateur psephologists.